A Stitch in Haste

I am on record as refusing to drink the libertarian Kool-Aid when it comes to jury nullification. It makes no sense to me, qua libertarian, to oppose the concentration of power by government in defiance of the rule of law, only to then support the concentration of power in defiance of the rule of law in yourself as a juror. Furthermore, in most if not all all cases a potential juror must lie, indeed perjure herself, to get on a jury if she presumes, a priori, to be entitled to commit nullification. That’s not my definition of libertarian ethics. And a nullifier does not set a defendant free, but merely creates a hung jury, which may result in a dropping of charges but will usually just result in another trial — not a costless proposition for the system, the other jurors or their counterparts in the re-trial.

But there is, as I have noted before, another reason for libertarians to advocate keeping jurors on a short leash: The simple fact that nullification can cut both ways:

The People contended that a substantial quantity of marijuana that had been found near, not in, the defendant’s apartment had been in the possession of the defendant. The People’s case had holes you could drive a truck through.
…
Just over an hour into the deliberations we took a vote — 11 not guilty, 1 guilty.

You can probably guess the rest. The one holdout wouldn’t budge, even though (after two full days of attempting to “deliberate”) he was unable to explain why he was certain the defendant was guilty.
…
And yes, the juror was an elderly white man, and the defendant was black (as was the prevaricating detective). Do I think racism was a factor? Hell, yes. But I suspect stupid was a factor, also — the juror lacked the mental capacity to understand abstract concepts like “burden of proof” or even “evidence.” [Emphasis in original.]

Now if you want to argue that there should be some sort of basic competency test to screen out “stupid as a factor,” then so be it. But don’t claim that this foolish old man doesn’t have the same right to be a renegade juror as an “noble and enlightened” libertarian juror wielding nullification like a sword of indignation.

Unjust laws must be dealt with via the legislative process, coupled with potent judicial review. It may be slow, it may be imperfect. But it’s the moral high ground in a way that jury nullification never can be.

(Via Unclaimed Territory.)

Similar Posts:

• Suddenly Jury Nullification Doesn’t Sound So Great
• Where is Your Nullification God Now?
• Did IQs Just Drop Sharply While I Was Away? (Part One)
• A Nullification Denouement
• The Jury is Still Out on Juries

Filed under: Constitutional Issues, Law, Libertarianism